1st Cir. Tosses FOIA Suit by Anti-Abortion Group

(CN) – Anti-abortion activists in New Hampshire cannot compel the government to disclose documents explaining why it gave grant money directly to Planned Parenthood, the 1st Circuit ruled. In 2011, the Department of Health and Human Service broke with past practice and awarded federal grant money directly to Planned Parenthood of Northern New England. Previously, the federal department awarded the money to the states, which in turn dispersed the funds through subgrants. But in June 2011, New Hampshire chose not to award any funds to Planned Parenthood, concerned that the money was being used to subsidize abortions despite the fact federal grants are not permitted to fund abortion services. The state then informed HHS that it could not find a replacement provider of family planning services as required by federal law. Planned Parenthood then applied for a direct award grant, and HHS granted it, finding the non-profit had “a history of successfully providing services in this area of the state.” New Hampshire Right to Life filed a Freedom of Information Act request seeking documents related to the department’s decision, then filed suit when HHS withheld some of the requested material, deeming it intra-agency memoranda or privileged commercial information. A federal judge found for the department, and the 1st Circuit affirmed Wednesday. “Right to Life argues that because Planned Parenthood is a non-profit organization, it cannot be said to possess commercial information within the meaning of Exemption 4. We disagree,” U.S. Circuit Judge Judge William Kayatta said, writing for the three-judge panel. Many non-profits from hospitals, to colleges, to the National Football League, engage in commercial activity, the court said. “How the tax code treats income from that commerce is a separate issue that has no bearing on our inquiry here,” the judge continued. And while the department found that Planned Parenthood is the only entity capable of providing family planning service in many parts of New Hampshire, that does not mean it does not face competition from other healthcare providers. “Although Planned Parenthood admittedly did not compete for the federal grant in 2011, it certainly does face actual competitors – community health clinics – in a number of different arenas, and in future Title X bids,” and it may be harmed by the release of its commercial information. In addition, the department did not waive its privilege by adopting its attorney’s advice in ruling that a replacement grant was legal. “The record provides no factual support for this claim unless one presumes that every time an agency acts in accord with counsel’s view it necessarily adopts counsel’s view as ‘policy of the Agency,'” Kayatta said. “As a categorical rule this makes no sense, especially where counsel’s legal advice is simply that there is no impediment to the agency doing what it wants to do.”